McClendon v. The Standard Insurance Brokers Ltd., 2009 HRTO 2072

Human Rights Tribunal of Ontario

B E T W E E N:

Catherine McClendon Applicant

-and-

The Standard Insurance Brokers Ltd. and Brian Ingo Respondents

Case Resolution Conference Decision

Adjudicator: David Shannon Date: December 1, 2009 Citation: 2009 HRTO 2072 Indexed as: McClendon v. Standard Insurance Brokers

Appearances By

Catherine McClendon, Applicant ) Self-represented, The Standard Insurance Brokers Ltd., ) John S. Fregeau, Counsel, and Brian Ingo, Respondents )

1This is an Application filed November 17, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) alleging discrimination in employment on the basis of disability. The underlying human rights complaint was filed with the Ontario Human Rights Commission on December 7, 2006 and abandoned upon filing this Application with the Tribunal.

2The applicant believes that the respondents’ decision to terminate her employment was discrimination due to her disability. She also believes that she has been “blacklisted” by employers in Kenora, and shunned by the community. I find, on a balance of probabilities, that the applicant was not discriminated against based on her disability. My reasons for this finding follow.

The Facts

3The applicant has over 30 years experience as a registered insurance broker as well as an underwriter. On November 3, 2003 she went to work for the corporate respondent in the Commercial Lines Department. Although there were no formal performance reviews, by the respondents’ own admission, her work was satisfactory. In April of 2006, the applicant requested and received a raise of 7.5%.

4In March 2006, the corporate respondent brought on a new partner to oversee the Commercial Lines Department. The new partner brought his assistant with whom he had worked for a lengthy period.

5On July 14, 2006, the applicant went on short term disability benefits after having a total left knee replacement. She planned to be off work for six weeks. The rehabilitation did not go as planned and she requested an extension of her leave through to October. A further extension was requested, and she expected to return to work on November 6, 2006 for half days. There were no further discussions concerning whether the applicant would have other accommodation needs due to her disability. The applicant indicated that it was common knowledge in the office that she may need a second knee surgery.

6On or about November 1, 2006, the respondent Brian Ingo, the corporate respondent’s current CEO, telephoned the applicant to advise her that the company was restructuring and she would be let go. She was provided with six week severance payments, and her remaining vacation pay and sick days. Four weeks after her Employment Insurance payments ended she found a job with another insurance company, and was later transferred to Thunder Bay. Her pay was substantially lower, although she was offered further commission based compensation.

7Three days after the applicant’s termination, the corporate respondent ran an advertisement in the local newspaper for a broker position with the Production Department.

8On questioning, Mr. Ingo indicated that the organizational dynamic had begun to change prior to the time that the applicant had her knee surgery, and left work to rehabilitate her knee. As Mr. Ingo detailed in his testimony, in March 2006 a new partner joined the company. He had been with a competing organization in Kenora, and he brought with him this former assistant and a significant client base. This hurt the competitors financially and caused a shift in the corporate respondent’s business plan.

9The partners decided that by restructuring they could reduce the number of support staff in the Commercial Lines Department by one, and save a significant amount in salary costs. The decision making process that led to the termination of the applicant began prior to her disability. The changed working environment shifted further as the newly acquired client base and employees caused a shift in business needs. The partners also considered the seniority of the support staff as well as skill sets. The applicant had low seniority with the corporate respondent. Ultimately, a new business plan was required due to these changes, and the applicant’s position was made redundant. The summer period had ended and the corporate respondent was about to embark on a new phase of business.

10The respondents also explained why they advertised for an insurance broker in the Production Lines Department, and did not offer that position to the applicant. Mr. Ingo’s testimony was that the job tasks of the Production Lines Department were distinct, and did not transfer to the Commercial department. In production, the staff are on the front lines where they interact with customers directly. The applicant had been playing a support role without direct client interaction.

11Mr. Ingo also indicated that advertising in the local newspaper was a means of testing the waters to see who was out there, and whether they could be lured away from the competition. In order to keep their competitive edge they placed the advertisement in the newspaper for a position that in their view did not comport with the applicant’s duties and skill set with the Commercial Lines Department. A new employee was hired for that position early in the new year.

12The respondents did not meet with the applicant to discuss her interest or skill set respecting the job with the Production Department nor did they provide any evidence to indicate that there was a meaningful consideration of her curriculum vitae. The applicant believed that she had the skills necessary to fill the above position as advertised. The respondents indicated that she was welcome to apply for the job with the Production Department. However, she did not apply and/or compete for the position.

Analysis

13The Code explicitly prohibits discrimination in the workplace based on disability by stating at section 5 the following:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

I find that the applicant had a disability within the meaning of the Code, and therefore had a right to equal treatment from the respondents.

14Furthermore, should an employee have a disability, the employer must accommodate that disability up to the point of undue, not just financial (see the criteria below), hardship. As the Code states at section 17:

17(2) No tribunal or court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

The applicant must prove on a balance of probabilities that the respondents did indeed discriminate against her based on her disability. Should she succeed in doing so, then the respondents must demonstrate that accommodating her disability would cause undue hardship.

15It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.

16When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs to determine whether or not a duty to accommodate the individual exists: see Wall v. The Lippé Group, 2008 HRTO 50 and Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 2004 BCHRT 225, 51 C.H.R.R. D/68. It is well-established in human rights law that the duty to accommodate encompasses two components: 1. procedural (that being the process whereby the accommodation was considered) and 2. substantive (the accommodation that was achieved or the reasons for lack of accommodation), see: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) at paras. 62-68.

Did the respondents discriminate against the applicant by terminating her employment?

17The respondents’ decision to terminate the applicant’s employment five days before she was to return to work, and to advertise for a new position shortly afterwards, may raise suspicions of discrimination. It is necessary to ask the question was the applicant’s disability or perceived disability in any way a factor in the decision to terminate her employment?

18The respondents assert that the decision was based on legitimate business reasons and these were not a pretext for discrimination. I agree. I find that the respondents have established that the decision to lay off the applicant was an objective calculation based on a commercial need to re-structure the organization, and the applicant’s disability was not directly or indirectly a factor in the decision. The respondents started the restructuring program before the applicant became disabled. The business dynamic had shifted significantly prior the applicant taking leave for knee surgery. There was a new department head, a new assistant and shifting client needs as early as March 2006. When the partners made a decision to re-structure the organization they needed to address the needs of their new clients, and decided to also keep staff who had been with the organization longer than the applicant in order to serve their long-term clientele. The respondents have provided a non-discriminatory explanation for why the applicant’s position, in particular, was selected for termination even though a new job was posted around the same time.

19Therefore, I find that the applicant’s disability was not a factor in the respondents’ decision-making and that her absence from the workplace on a disability-related leave did not put her at any disadvantage in the business restructuring plan. In short, I find that had the applicant not had a disability at the relevant time, the outcome would have been the same.

20The applicant believed that she had the skills necessary to fill the above position as advertised. The respondents indicated that she was welcome to apply for the job with the Production Department. However, she did not compete and/or apply for the position.

21For the above reasons, I do not believe that the applicant was discriminated against due to her disability, and therefore it will not be necessary to discuss whether her disability was accommodated pursuant to section 17 of the Code. The Application is dismissed.